SENATE DOCKET, NO. 1025        FILED ON: 1/17/2013

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1024

The Commonwealth of Massachusetts

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PRESENTED BY:

John Hart, Jr.

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act to protect crime victims exposed to the AIDS virus and infectious hepatitis.

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PETITION OF:

SENATE DOCKET, NO. 1025        FILED ON: 1/17/2013

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1024

The Commonwealth of Massachusetts

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In the Year Two Thousand Thirteen

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An Act to protect crime victims exposed to the AIDS virus and infectious hepatitis.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1.Section 3 of chapter 258B is hereby amended by adding the following subsection:-

(x) a victim of a designated offense, as defined in section 42B of chapter 276, shall be informed of the victim’s right to petition the court to have the defendant submit to an HIV testor a test for infectious hepatitis under said section 42B of said chapter 276.

SECTION 2.Chapter 276 of the General Laws is hereby amended by inserting after section 42A the following section:-

Section 42B.(a) As used in this section, the following words shall have the following meanings unless the context clearly requires otherwise:

“Designated offense”, assault by means of hypodermic syringe or needle under section 15C of chapter 265; rape under section 22 of said chapter 265; rape of a child under 16 with force under section 22A of said chapter 265; aggravated rape of a child under 16 with force under section 22B of said chapter 265; a repeat offense under section 22C of said chapter 265; rape and abuse of a child under section 23 of said chapter 265; aggravated rape and abuse of a child under section 23A of said chapter 265; a repeat offense under section 23B of said chapter 265; drugging persons for sexual intercourse under section 3 of said chapter 272; incestuous marriage or intercourse under section 17 of said chapter 272; unnatural and lascivious acts under section 35 of said chapter 272; unnatural and lascivious acts with a child under 16 under section 35A of said chapter 272;

“Hepatitis test”, a licensed screening test for the HBV and HBC antibody or antigen, conducted by a facility licensed by the department of public health;

“HIV test”, a licensed screening test for the human T-cell lymphotrophic virus type IIIantibody or antigen, conducted by a facility licensed by the department of public health.

(b) Notwithstanding section 70F of chapter 111 or any other general or special law to the contrary, when a defendant has been charged by a complaint or an indictment with a designated offense the court shall, upon request of the victim, order the defendant to submit toan HIV test, hepatitis test, or both; provided, however, that the testing shall only be ordered if the result would provide a medical benefit or a psychological benefit to the victim and the testing occurs within 12 months of the date of the offense that is charged in the complaint or indictment.

Medical benefit shall include, but not be limited to, a situation when: (i) adecision is pending about beginning, continuing or discontinuing a medical intervention for the victim; and (ii) the result of an HIV test or hepatitis testof the accused could affect that decision and could provide relevant information beyond that which would be provided from testing of the victim.

Upon a finding by the court that testing the defendant would provide a medical benefit to the victim or a psychological benefit to the victim, the court shall order the defendant to submit to an HIV test, a hepatitis test or both.

(c) Notwithstanding section 70F of chapter 111 or any other general or special law to the contrary, when a defendant has been charged by a complaint or an indictment with an offense, that is not a designated offense, the court shall upon request of the victim, order the defendant to submit to an HIV test, a hepatitis test, or both after the conclusion of a hearing where the court has determined that: (i) there is probable cause to believe that the defendant committed the offense; (ii) there is probable cause to believe that blood, semen or any other bodily fluid capable of transmitting the human immunodeficiency virus has been transferred from the defendant to the victim; (iii) the HIV test or hepatitis test result would provide a medical benefit or a psychological benefit to the victim; and (iv) the testing will occur within 12 months of the date of the offense that is charged in the complaint or indictment.

Medical benefit shall include, but not be limited to, a situation when: (i) a decision is pending about beginning, continuing or discontinuing a medical intervention for the victim; and (ii) the result of an HIV test or hepatitis test of the accused could affect that decision and could provide relevant information beyond that which would be provided from testing of the victim.

(d) Upon order of the court, test results obtained under this section shall be sent by the testing facility to the court. The court shall make sure the test results are provided to the defendant and the victim; provided, however, no positive test results shall be disclosed to the victim or the accused without also providing or offering professional counseling services. The court shall disclose the test results, if the defendant is incarcerated or detained, to the officer in charge and the chief medical officer of the facility in which the defendant is incarcerated or detained. The test results shall thereafter be impounded. No health care facility shall be liable for the release of HIV or hepatitis test results under this section.